American politics

The legacy of Roe v Wade

Full court press

WHAT is the true legacy of Roe v Wade, which was decided 40 years ago today? On the one hand, that question seems obvious: legal abortion. In Roe the Supreme Court held that the "due process" clause of the 14th amendment contains "a concept of personal liberty", and, building on an earlier decision that barred states from criminalising counselling related to contraception, that "the penumbras of the Bill of Rights" enshrine "a right of personal privacy, or a guarantee of certain areas or zones of privacy". It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and thus found blanket or statutory bans on abortion unconstitutional. States could ban third-trimester abortions, and "regulate the abortion procedure in ways that are reasonably related to maternal health" in the second, but in the first trimester the decision to terminate a pregnancy was solely the province of a woman and her doctor.

But, as the past few years have shown, just because states cannot ban abortion outright does not mean they cannot regulate it out of practical existence. In 2011 states enacted three times as many restrictions (91) on abortion providers and clinics than in the next-highest year (35). Virginia required abortion clinics to meet the same (onerous and expensive) building, parking and record-keeping requirements as hospitals. Mississippi requires abortionists practicing there to have admitting privileges in local hospitals—privileges that must be applied for and can be denied for any reason, such as not wanting to grant them to doctors who perform abortions. Personhood amendments, which would define human life as beginning at conception and therefore make abortion murder, have not won passage onto any state's constitution, but advocates will no doubt keep trying. As the maps in this article show, first-trimester abortions may be just as constitutionally protected today as they were 13 years ago, but they are functionally far harder for women (particularly poor women, who lack the means to travel out-of-state) to obtain.

Writing in the New Yorker, Jill Lepore makes a compelling case that the real and lasting legacy of Roe has nothing to do with abortion; instead, it has to do with how the left and right use courts. The left, seeing the backlash that resulted from the Supreme Court effectively deciding a complex and thorny social issue, has been reluctant to go that road again. The right, seeing how the Supreme Court had effectively decided a complex and thorny social issue, has, in the words of a constitutional-law scholar whom Ms Lepore quotes, "raised a generation of people who understand that courts matter and who will vote on that basis and can be mobilised to vote on that basis and who are willing to pay political costs for votes. This is completely lacking on the other side." Never underestimate the instructive power of failure and loss, in other words. Witness the now-orthodox but until recently rather fringe opinion that the second amendment fully protects an individual's right to own whatever guns and accessories he pleases. Or the monstrously unpopular decision to permit unlimited campaign spending. Or the fight to gut the Voting Rights Act, which was overwhelmingly renewed with bipartisan support, on the basis not of (or not only of) political popularity but evidence of continued discrimination, just seven years ago.

This legacy, it seems to me, is wholly unsalutary. Of course, rights should not be subject to referendum. The civil-war amendments were rammed down the throats of 19th-century white southerners, as well they should have been. At various points in the past decade you probably could have found a majority of voters in plenty of states who would have supported abrogating the first amendment for Muslims. I would guess measures to permit, or even compel, Christian prayers in public schools would easily pass in my home state and most of its neighbours.

But not all contentious social issues boil down to, or should be boiled down to, rights to be disputed in courts. I have a tremendous amount of sympathy for people who argue that the right to marry the person of one's choosing, regardless of gender, is a fundamental right not subject to ratification by the majority of voters. I have this sympathy because they are correct. But what is that correctness worth in the long-term, balanced against the social consequences when majorities of voters in four states did, in fact, approve of that right, as opposed to the consequences of a top-down decision from a judge in California. As Ms Lepore notes in her piece, the court route encouraged abortion-rights advocates to argue their position based on privacy, rather than equality—to make the argument legalistic and abstract, rather than concrete and inclusive. Small wonder that the left has been on its heels on abortion ever since, just as the right has on campaign finance.

Row v Wade was regrettable in part because it lowered the People's expectation of our participation in our democracy. Large portions of our population hold strongly opposed views on this issue, and our pre-RvW constitutional system was perfectly well equipped to handle that. Let the states have their varied laws reflecting the views of their varying majorities, and if it is important enough to treat uniformly across the nation, let the People amend the Constitution to say so. One might argue that it is very difficult to amend the Constitution, but this is just an example of post-RvW democratic laziness. Remember, the People have done so many times before. We even managed amendments both ways on alcohol within 15 years. If the Court hadn't fabricated a constitutional right to abortions 40 years ago, it might actually be in the Document in some form by now.

This is unfortunate for many reasons, not least the damage it does to the idea that we are governed by laws, not men. From a very practical perspective, it causes abortion to continue to suck up our scarce political resources. Every election cycle, many millions of Americans have to consider, among the myriad other reasons to vote for or against candidates, who each candidate might appoint or vote to confirm to the Court because, as RvW enforces, the law on abortion or anything else is only really whatever the Justices say it is. Let the People write down the answer to this question and we will be relieved of much of this ongoing angst. By instead inventing an answer subject to change, the Court gave us a cheap short-term fix that is costing us much more in the long run.

The legal basis of Roe v Wade was nothing new; substantive due process appeared shortly after the 14th Amendment was passed. The 9th Amendment, which states that the basis from which we start is that each of us has every right imaginable, puts the burden of justification for limiting any right on the jurisdiction that would do so.
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I am not impressed by the words "child" and "murder" when applied to the entire period of gestation. How many funerals are held for miscarriages among the anti-abortion people?
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A lack of enthusiasm for contraception is a vast hypocrisy among those who oppose all abortion.
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Until a fetus is capable of living independently, a woman can reasonably claim that she is being held to involuntary servitude, contrary to the 13th Amendment, if forced to carry that fetus.
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I don't think anyone likes abortion. I also believe that anyone sane does not want to see unwanted children forced into life. We face two unpalatable choices. I personally agree with the division of abortion by trimester. In the first, it ought to be unrestricted; the second, very difficult, depending on the life and health of the mother; the third, impossible, except for the life of the mother. The states have always had the right to legislate concerning third trimester abortions.
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Abortion in the first trimester will never be illegal again; a majority of the people would not stand for it. That is all I consider of ultimate importance in this debate.

"It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and thus found blanket or statutory bans on abortion unconstitutional."

It seems that this court decided that one person's right to "privacy" trumps the right of a developing child to be protected from being killed. How odd. As one well schooled in biology, it seem hard to imagine educated people not seeing the termination of, for example, a 2nd trimester pregnancy, as other than killing a living being.

Dressing it up with the noble motive of protecting the "privacy" rights of the mother, does not change what is really going on does it?

"It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and thus found blanket or statutory bans on abortion unconstitutional."

It seems that this court decided that one person's right to "privacy" trumps the right of a developing child to be protected from being killed. How odd. As one well schooled in biology, it seem hard to imagine educated people not seeing the termination of, for example, a 2nd trimester pregnancy, as other than killing a living being.

Dressing it up with the noble motive of protecting the "privacy" rights of the mother, does not change what is really going on does it?

The legal basis of Roe v Wade was nothing new; substantive due process appeared shortly after the 14th Amendment was passed. The 9th Amendment, which states that the basis from which we start is that each of us has every right imaginable, puts the burden of justification for limiting any right on the jurisdiction that would do so.
*
I am not impressed by the words "child" and "murder" when applied to the entire period of gestation. How many funerals are held for miscarriages among the anti-abortion people?
*
A lack of enthusiasm for contraception is a vast hypocrisy among those who oppose all abortion.
*
Until a fetus is capable of living independently, a woman can reasonably claim that she is being held to involuntary servitude, contrary to the 13th Amendment, if forced to carry that fetus.
*
I don't think anyone likes abortion. I also believe that anyone sane does not want to see unwanted children forced into life. We face two unpalatable choices. I personally agree with the division of abortion by trimester. In the first, it ought to be unrestricted; the second, very difficult, depending on the life and health of the mother; the third, impossible, except for the life of the mother. The states have always had the right to legislate concerning third trimester abortions.
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Abortion in the first trimester will never be illegal again; a majority of the people would not stand for it. That is all I consider of ultimate importance in this debate.

Row v Wade was regrettable in part because it lowered the People's expectation of our participation in our democracy. Large portions of our population hold strongly opposed views on this issue, and our pre-RvW constitutional system was perfectly well equipped to handle that. Let the states have their varied laws reflecting the views of their varying majorities, and if it is important enough to treat uniformly across the nation, let the People amend the Constitution to say so. One might argue that it is very difficult to amend the Constitution, but this is just an example of post-RvW democratic laziness. Remember, the People have done so many times before. We even managed amendments both ways on alcohol within 15 years. If the Court hadn't fabricated a constitutional right to abortions 40 years ago, it might actually be in the Document in some form by now.

This is unfortunate for many reasons, not least the damage it does to the idea that we are governed by laws, not men. From a very practical perspective, it causes abortion to continue to suck up our scarce political resources. Every election cycle, many millions of Americans have to consider, among the myriad other reasons to vote for or against candidates, who each candidate might appoint or vote to confirm to the Court because, as RvW enforces, the law on abortion or anything else is only really whatever the Justices say it is. Let the People write down the answer to this question and we will be relieved of much of this ongoing angst. By instead inventing an answer subject to change, the Court gave us a cheap short-term fix that is costing us much more in the long run.

What is this equality argument for abortion rights you speak of? I get the "my body, my right" argument. I get the social utility argument. But equality? I suppose you can try to make a gender equality argument. But you probably don't want to open that can of worms. What about the right of the father not to have a child? What about sex-selective abortion? Just because YOU dismiss those arguments doesn't mean others will too.

Abortion isn't popular. The legal route pro-choicers take isn't one of choice (ironically) but necessity. It's as ridiculous to claim that they'd win over a majority if only they'd make better arguments as it is to claim that the slave states would've gotten their way even without secession had they only made a better intellectual case for slavery. It may come as a surprise to you but a lot of people really don't like abortion and it's not because they haven't heard it presented in a more appealing package.

I'm gonna coin a new logical fallacy here. The "It's just like x" fallacy. It's the idea that just because public opinion changed in your favor on one issue, it must necessarily change in your favor on another issue that you personally perceive to be analogous. It ignores the fact that most people might not see it as analogous. At least interracial marriage and gay marriage bear some similarities. Gay marriage and abortion rights? Not so much.

Those of us who were adults remember Roe v. Wade as a thunderclap. For many of us, the immediate reaction to the SCOTUS' decision was incredulity -- followed by outrage. A group of nine unelected old, white males (the type that liberals now love to hate!) met in secret and decided what constitutes human life, when it so constitutes life and substituted its own judgment regarding the sanctity of that life for the judgment of the community-at-large. What is more, it did this without allowing further discussion or legislation or amendment in the most democratic nation on earth. Not since Dred Scott had the SCOTUS so recklessly abused its power.

In the years that followed, more and more of us came to see the courts as our enemy. They were, and are, dictatorial, unappealable (at the SCOTUS level) and to be feared and even hated. There have been precious few reasons since 1973 to amend this opinion.

It is ludicrous that a nation that calls itself a democracy will not submit one of the most pressing moral issues of our time to popular referendum. That it will not allow duly constituted elected officials to legislate in accordance with the opinion of their constituents.

Roe was an outrage then, is an outrage now and will continue to be an outrage until legislative action finally emasculates that decision.

So would each aborted American adult. Of course, neither is actually true. It's the mirror image of the "finish your dinner because there are starving children in Africa" fallacy. Whether I eat or not, it has exactly zero effect on children in Africa.

How on earth can anyone, even the most dishonest, claim that after the birth we "strip him or her of all support?" Was that what happened to you? Were you taken from the birth canal and left to fend for yourself by the side of the highway? Or, were you nutured, protected, loved and helped to maturity? (I see that you can write -- someone taught you that, right?)

It is an axiom of law in civilized countries that moral censure cannot be separated from intent. So, explain for us. . . . what exactly does the baby "do" to its mother that it intends? A home invader can be punished because of intent to commit a crime. What "crime" does the baby commit and precisely when during the Nine Months is it able to form intent?

It is some sign of our moral degredation that an infant in the womb -- in better times a source of joy -- is now regarded by writers such as yourself as equivalent to a home invader and should be killed on the spot.

To quote the late Robert Welch: "At long last, Sir, have you no shame?"

Gendercide -- abortion by gender -- is the pro-abortion side's problem from hell. Uniformly, in China, India and other Asian countries, this means mass abortion of daughters. With modern sonography it is not difficult to determine the sex of the unborn infant early into term. Since Asian cultures privilege sons, and since China has a one-child rule, the girls are aborted. Estimates -- and they are only estimates -- put the number of aborted Asian girls at around 100 million over the past twenty years (since sonography became common.) It may be a lower number -- or it may be much higher.

To the pro-life side, there is no ambigtuity here. What is happening is a moral horror -- like all abortion. It does not matter whether the unborn were females or males. Killing is killing and death is death.

But, it ties the pro-abortion side in knots. Abortion is overwhelmingly a feminist argument. "Control over our own bodies . . . Our bodies, Ourselves" . . . we all know the slogans. But, into this woman-centric world comes the mass annihilation of tens of millions of females babies in the womb. It simply paralyzes the pro-abortion lobby (and they are not pro-choice: they are pro-abortion.)

It is symptomatic of the moral bankruptcy of these feminists that they can find no moral basis with which to object to mass killing of female unborn. Or to killing on the basis of sex selection. After all, in their moral world nothing trumps the woman's desires.

What are we to think of a "morality" that can find no way to object to killing tens of millions of unborn infants -- just because those infants are females?

Killing people is no way to justify feeding others. How myopic. By your logic the killer of the Sandy Hook students should be praised for allowing starving children in other parts of the world to eat better and more food.

If Roe vs. Wade were repealed, it seems unlikely that much would change. The blue states would of course maintain legal abortion, and those are the states where most of the abortions are happening anyway. If Texas and its kind ban the practice, then move somewhere else if it matters to you that much.

The reality of the SCOTUS -- is that it has always been political. From its inception to the first appointments and first decision when the 'men' on the Court were among the so revered 'founding fathers', to RvW and since (though now not all the judges are men). Most 'anti' comment reflects the idealized historical view that the constitution was perfectly designed by a set of demigods who could see into the future for all time. Presidents and congressmen have always been elected for political reasons and the composition of the Court has always been among those political considerations.

Arguing that amending the constitution is easy simply ignores the huge amount of political energy (money and otherwise) spent on passing the prohibition amendment, women's right to vote (btw, whatever happened to the ERA?), not to mention the 13th, 14th, and 15th amendments arising as they did out of a war fought by wackos insisting on their 'state's rights' to mistreat human beings.

Hiding behind simplistic statements that 'we are governed by laws, not men' ignores the messy reality of human politics -- that all these laws were passed by humans who are, indeed, infinitely fallible. This includes the humans we now collectively refer to as our founding fathers.

Living with other human beings is a messy business, the balance of rights between these human beings is very complicated (an understatement) and the Supreme Court and the court system has a rightful place in determining that balance, which was, indeed, the intention of those founding fathers. And being human, court decisions will not always lead to fair results, but things have turned out generally positively (with more than a few bumps) over these two hundred plus years.

I have a hard time accepting the fact that humanity begins at the moment a child's head fully exits the birth canal as children are routinely born prematurely as early as the sixth month of pregnancy. If the U.S. Supreme Court, in its wisdom, says otherwise though who am I to object that the notion is being "rammed down" my throat.

If the abortion argument was about abortion, those who oppose abortion would be leading the charge for contraception to be freely and widely available. Because, after all, if contraception is done successfully, the question of abortion doesn't arise.

But we don't see anything like that. Because the "abortion question", in the vast majority of cases, is about sex, not about abortion at all.

The world is full of people who, for various religious/political reasons, believe they have an Obligation to force their own beliefs on everyone else. The good news about a liberal, humanist society (like the US founding fathers envisioned) that lives under the rule of law is that religious/radical beliefs are subject man made laws; e.g., the US Constitution and Bill of Rights. The bad new is the religious/political radicals tend to be highly motivated to change the "Law of the Land" to fit their prejudices. One price of freedom is constant vigilance against the tyranny of "true believers".

Fair question, but I wonder if it really matters in this context. It seems that anti-abortionist extremists do not seem to care, preferring to vent some kind of internal rage through this topic and onto anyone they deem an 'enemy', as you can see above. It seems the 'nazi' epithet is pretty widely used on both sides of this issue and many are not interested in the big picture. As far as I am concerned there is no 'absolute' answer to this issue and am therefore interested in getting the facts and arguing based on those facts. My personal record (as a male) is 1 abortion, 4 healthy kids, and 2 spontaneous abortions when trying to have kids. The later 6 pregnancies with the same woman. For what that is worth.

I read the 50% factoid only recently in a fairly reliable source (a commercial media outlet as opposed to the many polemic organisations and websites on both sides of this issue), but I forget now the source. I was struck by your question and wanted to make sure as best I could, this being such an infected issue. So I googled '50% of all pregnancies' since that was the statement in the source. Among many other hits, I came to http://www.emcom.ca/health/abortion.shtml and did a little reading, coming to the conclusion that his was a fairly reliable source, but would probably not be accepted by most US anti-abortionists. Wiki also cites this and the NIH (see http://en.wikipedia.org/wiki/Miscarriage), this also provides some good background, but you have to do your own digging to make sure. The American Pregnancy Association (http://www.americanpregnancy.org/main/statistics.html) puts it this way 'There are approximately 6 million pregnancies every year throughout the United States: 4,058,000 live births; 1,995,840 pregnancy losses' indicating an approx. 33% loss rate. This last leaves room for the other sources 'estimations', but seems fairly reliable also.

"The man supplies an infanitessimal quantity of dna, and everything that is the baby has been harvested from the mother's body along with her infanitessimal bit of dna."
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So what you are saying is that you are the "apple of your parent's eye"? Or; maybe more accurately, the "persimmon of your parent's eye"? At least for the persimmons in our yard - you need a male tree and a female tree for the female tree to bear fruit - neither can do it alone.